Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Friday, February 29, 2008

Is Senator McCain Eligible To Be President?

Mccain The constitution states that only naturally born citizens are eligible to be President. The A.P. reported that Senator McCain was born in the Panama Canal Zone and that the Senator asked for Solicitor General Ted Olson (also of Bush v. Gore fame) to research this issue. As the article states:

McCain himself insists the issue was put to rest when fellow Arizonan, Barry Goldwater, ran for president in 1964.

"Barry Goldwater was born in Arizona when it was a territory, Arizona was a territory, and it went all the way to the Supreme Court," McCain told reporters Thursday on his campaign plane. "And there's no doubt about that. And it was researched again in 2000."

The Panama Canal Zone was a U.S. territory when McCain was born on Aug. 29, 1936.

As for the reason for seeking Olson's opinion: "I don't know," McCain said. "Maybe my staff talked to him, but I didn't. But I have absolutely no concern about that."

"It's very clear that (the idea that) an American born in a territory of the United States whose father is serving in the military would not be eligible for the presidency of the United States is certainly not something our founding fathers envisioned." McCain's father was stationed in the Canal Zone by the Navy at the time of his birth.

Could you imagine?? What this this points out is that the consitution needs to be amended. It's simply out-dated.

Mitchell H. Rubinstein

February 29, 2008 in Legal News | Permalink | Comments (2) | TrackBack (0)

Exploring Constitutional Law

Exploring Constitutional Law is a wonderful web site maintained by UMKC Law Professor Doug Linder. It is a mini constitutional law horn book and case book about various con law issues such as judicial review, the First Amendment and Due Process. This web site mainly cites to the leading cases Supreme Court cases and not lower court opinions.

Con Law researchers may want to check this site out.

Mitchell H. Rubinstein

February 29, 2008 in Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Thursday, February 28, 2008

Board Reaffirms Caesar's Tahoe Re: Unit Placement Determinations In Stipulated Election Agreements

Nlrb_2 What happens if there is a dispute over the placement of certain individuals?  The Board applies the Caesar Tahoe standard. In Cardinal Health Care, 352 NLRB No. 19 (Feb. 15, 2008), the Board reaffirmed this standard which it described as follows: 

The hearing officer applied the three-part test articulated in Caesar’s Tahoe, 337 NLRB 1096, 1097 (2002), to determine whether the challenged voters were properly included in the stipulated bargaining unit. Under that test, [T]he Board must first determine whether the stipulation is ambiguous. If the objective intent of the parties is expressed in clear and unambiguous terms in the stipulation, the Board simply enforces the agreement. If, however, the stipulation is ambiguous, the Board must seek to determine the parties’ intent through normal methods of contract interpretation, including the examination of extrinsic evidence. If the parties’ intent still cannot be discerned, then the Board determines the bargaining unit by employing its normal community of interest test. [Id.]

Mitchell H. Rubinstein

February 28, 2008 in NLRB | Permalink | Comments (0) | TrackBack (0)

Is The Bush Administration Right to Seek the Death Penalty for 9/11 Captives?

Is The Bush Administration Right to Seek the Death Penalty for 9/11 Captives? is an interestng Feb. 13, 2008 Find Law column by Columbia Law School Professor Michael Dorf. Professor Dorf discusses the Bush Administration's decision to seek the death penalty, via statutorily-authorized military commission proceedings, for Khalid Shaikh Mohammed and five others who allegedly played roles in the 9/11 attacks. Dorf considers the various arguments for the imposition of the death penalty, and explains why each might or might not apply in these extraordinary circumstances -- considering factors such as the difficulty of deterring someone on a suicide mission with the threat of the death penalty, and the possibility that executions could lead to the deaths of more innocent people.

Mitchell H. Rubinstein

February 28, 2008 in Current Events | Permalink | Comments (0) | TrackBack (0)

Student Looses Dispute Over His High School Class Rank

Matter of Pesce v. Westhampton Beach School Dist., ___Misc. 3d___(Suffolk Co. Feb. 11, 2008), is a somewhat unusual Education Law case. A student sought to enjoin the Board from issuing its school rankings. Under the school's policy, the student would be ranked 7th. If the earlier ranking policy is used, the student would rank first in his class. Obiviously, this is important and there is a big difference between the number 1 and 7.

Unfortunately, the court did not discuss many facts about the dispute. Instead, it basically upheld the decision of the Board and dismissed the case on primary jurisdiction grounds even though the student may graduate by the time the Commissioner of Education decides the dispute in an administrative forum. As the court stated:

It might be “particularly inappropriate” for the Court to involve itself in this controversy at this time since the ‘relevant statutory duty involves the exercise of judgment and discretion” on the part of the Board of Education and administrative appeals are pending . . . The Board of Education statutory network of officials is vested with the responsibility to develop the system to grade and rank students and the State Education Department is charged with the responsibility to review that system if it is challenged. . . The review of a long standing policy to determine the class rank of students is initially in the realm of responsibility of the Board of Education and followed by review of the Board’s decision by the Commissioner pursuant to Education Law 310. . .Thc control and management of education affairs is vested in the Board of Regents and the Commissioner of Education (New York Constitution, article V, Section 4; article XI, Section 2; Education Law $5 207 . . .

The court decision appears to be correct because a request was also made for an injunction before the Commissioner of Education and he did not grant it. Plaintiff's remedy is to seek an interloctory appeal of Commissioner's ruling with respect to the denial of a preliminary injunction-not the institution of a new proceeding which is what occurred. 

Mitchell H. Rubinstein      


February 28, 2008 in Education Law | Permalink | Comments (0) | TrackBack (0)

X Felon Could Not Be Denied a NYS Job

It is very difficult for X felons to get work. In Hollingshed v. State of New York, ___Misc. 3d___(Bronx Co. Jan. 31, 2008), the court held, however, that an X felon who turned his life around after a 24 year old felony conviction could not be denied state employment.

The court stated that §752 of the state Correction Law allows an employer to deny an individual employment based on criminal history only if a "direct relationship" exists between the prior offenses and the specific job or if the person would present an "unreasonable risk" to property or the public.

In deciding whether to hire a person with a criminal conviction,  an employer must consider several factors, including the duties of the job, when the offense occurred, the "seriousness" of the crime, information concerning "rehabilitation and good conduct," and the "legitimate interest in protecting property, and the safety and welfare of specific individuals or the general public." 

The court held that plaintiff was able to satisfy this test. A New York Law Journal article about this case is available here.

Mitchell H. Rubinstein   

February 28, 2008 in Employment Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 27, 2008

Jailhouse Lawyer Granted Cert. Under Investigation For Unauthorized Practice of Law

Adjunct Prof Blog covered Disciplinary Counsel v. Cotton, 873 N.E. 2d 1240 (Ohio 2007), here, which held that a jailhouse lawyer (an inmate helping another inmate in a legal matter)  was not the unauthorized practice of law- at least where the facilities for other inmates were inadequate. Additionally, on Feb. 7, 2008, we covered the story of a jailhouse lawyer who successfully filed a cert petition, available here. Now Meg Kinnard of the Associated Press is reporting that same jailhouse lawyer is under investigation for the unathorized practice of law. As the article states:

The prison law clerk who convinced the U.S. Supreme Court to hear a fellow inmate's case is being investigated by South Carolina authorities for practicing law without a license, the prisoner's attorney said.

Lawyer Rauch Wise said the state attorney general's office informed him last week they were investigating Michael Ray, a federal inmate in South Carolina.

Ray helped fellow inmate Keith Lavon Burgess appeal his conviction for possession of crack cocaine with the intent to distribute. In the appeal, which the U.S. Supreme Court is scheduled to hear on March 24, Burgess is arguing that a prior drug conviction prosecutors used to get him the 20-year minimum prison sentence shouldn't have applied because it was a misdemeanor instead of a felony.

The issue of jailhouse lawyers and the practice of law has been litigated in many cases. Generally, courts uphold this practice by distinguishing between the practice of law and the UNAUTHORIZED practice of law. This will be an important case to watch. Do I sense a retaliatory motive here??

Mitchell H. Rubinstein

February 27, 2008 in Lawyers | Permalink | Comments (1) | TrackBack (0)

Supremes Hold that Under ADEA EEOC Questionaire May Satisfy Administrative Charge Filing Requirement

Ussupremes Federal Express v. Holowecki, 552 U.S. __(Feb. 27, 2008), is an important ADEA case. The issue in the case was what constituted a charge under 29 U.S.C. Sec. 626(d)? That statutory provision provides that a civil action cannot be commenced until 60 days after a charge has been filed with the EEOC.

What happened here was that plaintiff did not file a EEOC charge form. He filed out an EEOC questionnaire and an affidavit which the EEOC is suppose to use in drafting the charge. The Court does not adopt a per se rule as to whether a questionnaire is the equivalent of a charge. Rather, the Court holds a questionnaire could be construed to be a charge if it can be construed to constitute a request that the EEOC take remedial action. For me this decision appears to be a "no-brainer."

However, what I found surprising occurred very early in the opinion. Justice Kennedy, writing for a 7 Justice majority added what he called a "cautionary preface." He noted that the procedures under Title VII are not the same and therefore, the result may not be the same under Title VII. As the Court stated:

  As a cautionary preface, we note that the EEOC en-forcement mechanisms and statutory waiting periods for ADEA claims differ in some respects from those pertaining to other statutes the EEOC enforces, such as Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq., and the Americans with Disabili-ties Act of 1990, 104 Stat. 327, as amended, 42 U. S. C. §12101 et seq. While there may be areas of common definition, employees and their counsel must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination. Cf. General Dynamics Land Systems, Inc. v. Cline, 540 U. S. 581, 586–587 (2004). This is so even if the EEOC forms and the same definition of charge apply in more than one type of discrimination case.

Why did the Court see the need to add this dicta? Also, why was it added at the start of the opinion, before the analysis? This issues is ripe for law review commentary.

Mitchell H. Rubinstien

February 27, 2008 in Discrimination Law, Law Review Ideas | Permalink | Comments (0) | TrackBack (0)

Unemployment Benefits and Strikers

The availability of unemployment benefits is very important to strikers. Each state regulates unemployment for strikers differently. In the state of New Jersey, strikers are disqualified from unemployment, except if the employer as not suffered a "stoppage of work." A work stoppage is defined as less than 80% of the normal production. NJSA 43:21-5(d).

Well, what is normal production? That important issue was recently addressed in Lourdes Medical Center v. Board of Review, 394 N.J. Super. 446 (App. Div. 2007), where the employer challenged that 80% rule. The court  noted the difficulty in defining how you calculate the 80%. In the case of a hospital, the number of patients served is only one factor to be considered. The extent routine work is not being performed also has to be considered as well numerous other factors.

This is an important decision in New Jersey.

Mitchell H. Rubinstein   

February 27, 2008 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Florida's Minimum Wage Act Upheld As Constitutional

The FLSA is not the only Minimum Wage statute in town. Many states have also issued their own statutes and requirements that sometimes exceed minimum federal requrirements, but often simply duplicate them. A federal district court in Florida recently upheld the Florida Minimum Wage Act, Fla. Stat. Sec. 448.110 as constitutional.  The case is Resnick v. Oppenheimer and Co., ___F.Supp.2d___, 2008 WL 113665 (S.D. Fla. Jan. 8, 2008)(registration required).

Mitchell H. Rubinstein

February 27, 2008 in Employment Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 26, 2008

Surprise-Staring At Woman's Breasts Is Sexual Harassment

1stcir Billings v. Town of Grafton, ___F.3d___ (1st Cir. Feb. 7, 2008), is an important First Circuit decision reviewing sexual harassment law under Title VII. The court held  that District court erred by entering summary judgment in favor of employer on sexual harassment claim where evidence, viewed in employee's favor on summary judgment, depicted supervisor who stared at employee's breasts for much of the employee's tenure. A reasonable jury could conclude that staring resulted in hostile work environment as matter of law.

Mitchell H. Rubinstein

February 26, 2008 in Discrimination Law | Permalink | Comments (0) | TrackBack (0)

Dog and Cat Sterilization

Pet Sterilization Becomes Law in LA is an interesting Feb. 26, 2008 A.P. article. LA has enacted one of the toughest pet sterilization laws in the country with the hope of it eventually becomming a "no kill" city. As the article states:

Mayor Antonio Villaraigosa on Tuesday signed one of the nation's toughest laws on pet sterilization, requiring most dogs and cats to be spayed or neutered by the time they are 4 months old.

The ordinance is aimed at reducing and eventually eliminating the thousands of euthanizations conducted in Los Angeles' animal shelters every year.

"We will, sooner rather than later, become a no-kill city and this is the greatest step in that direction," Councilman Tony Cardenas said as he held a kitten at a City Hall news conference.

Mitchell H. Rubinstein

February 26, 2008 in Misc., Legal | Permalink | Comments (0) | TrackBack (0)

Supremes Rule "Me Too" Evidence Is Not Subject To Per Se Rule

Ussupremes Sprint/United Management Co. v. Mendelsohn, 552 U.S. __ (Feb. 26, 2008), is an important ADEA case-though it probably has broader application to other statutes such as Title VII.  However, the Court primarily focused on procedural issues and faulted the Tenth Circuit with improperly assuming that the District Court's exclusion of the evidence amounted to a per se bar without first remanding the case back to the lower court for clarification regarding the intended scope of its exclusion.

The Court ultimately held that the admissibility of "me, too" evidence of discrimination involving others is a fact-based determination which is not "per se admissible or per se inadmissible." The case was remanded back to the District Court to make this determination. As the Court stated:

In the Court of Appeals’ view, the District Court excluded the evidence as per se irrelevant, and so had no occasion to reach the question whether such evidence, if relevant, should be excluded under Rule 403. The Court of Appeals, upon concluding that such evidence was not per se irrelevant, decided that it was relevant in the circumstances of this case and undertook its own balancing under Rule 403. But questions of relevance and prejudice are for the District Court to determine in the first instance. Abel, supra, at 54 (“Assessing the probative valueof [evidence], and weighing any factors counseling against admissibility is a matter first for the district court’s sound judgment under Rules 401 and 403 . . .”). Rather than assess the relevance of the evidence itself and conduct its own balancing of its probative value and potential prejudicial effect, the Court of Appeals should have allowed the District Court to make these determinations in the first instance, explicitly and on the record.3 See Pullman-Standard v. Swint, 456 U. S. 273, 291 (1982) (When adistrict court “fail[s] to make a finding because of an erro-neous view of the law, the usual rule is that there should be a remand for further proceedings to permit the trialcourt to make the missing findings”). With respect toevidentiary questions in general and Rule 403 in particu-lar, a district court virtually always is in the better position to assess the admissibility of the evidence in the context of the particular case before it.

Mitchell H. Rubinstein

February 26, 2008 in Discrimination Law | Permalink | Comments (0) | TrackBack (0)

Teacher Who Quits Because She Was Threatened Is Not Entitled to Unemployment

Matter of Viera v. City School Dist. of City of New York, __A.D.3d ___(3d Dep't. Feb. 14, 2008), demonstrates how difficult it can be to obtain unemployment if you voluntarily leave your employment.

A former employee is, of course, ineligible for unemployment if he or she voluntarily left. Well, what if your fearful for your safety. That's not enough according to this decison. As the court said: 

Claimant maintains that she had good cause for leaving her job because she was concerned for her safety and well-being. We note that "[f]ear for one's safety may be found to constitute reasonable cause for resigning if there is evidence that remaining in a job would jeopardize the claimant's physical well-being" (Matter of Walls [Commissioner of Labor], 289 AD2d 678, 678 [2001]). "However, '[w]hether good cause exists for leaving one's employment is an issue of fact for the Board, whose decision will be sustained if supported by substantial evidence'" (Matter of Smith [New York City Dept. of Health & Mental Hygiene Commissioner of Labor], 28 AD3d 846, 847 [2006], quoting Matter of Arroyo [Sweeney], 247 AD2d 745, 746 [1998]). [*2]

Here, claimant was involved in four separate incidents with students between October and December 2006 during which she was called names, threatened with physical violence and treated with disrespect. However, the record indicates that claimant did not report all of these incidents to school officials and, in fact, the school principal took disciplinary measures against those students involved in the incidents which were reported. Although the work environment was undoubtedly stressful, there is no evidence that claimant's safety was in actual jeopardy or that school officials refused to respond to claimant's concerns. Therefore, while a contrary result would not have been unreasonable, substantial evidence supports the Board's decision (see Matter of Smith [New York City Dept. of Health & Mental Hygiene Commissioner of Labor], supra; Matter of Trella [Commissioner of Labor], 253 AD2d 970 [1998]).

Mitchell H. Rubinstein

February 26, 2008 in Education Law | Permalink | Comments (0) | TrackBack (0)

More on Martinez: Antislavery Courts

Last week, I commented on Professor Jenny Martinez's current article in the Yale Law Review on antislavery courts.  Yesterday, Professor Martinez added a companion essay, "Antislavery Courts" at Yale Law Journal Pocket Parts, the online companion to the journal.  Her essay includes digital images of some of the original court documents she reviewed in researching and writing the article.

Again, Professor Martinez's work on the Yale Law Journal article and now the companion essay is highly recommended reading for legal history fans.

Craig Estlinbaum

February 26, 2008 in Blogs, Faculty, Law Professors, Law Review Articles | Permalink | Comments (0) | TrackBack (0)

Annual Adjunct Meeting

Our school will soon hold our annual adjunct faculty meeting.  The feature of this meeting will be adjunct faculty use of Westlaw/TWEN or Lexis/Blackboard course homepages.  I have demonstrated my own use of these to adjuncts in past years.  This has only resulted in a marginal increase in adjunct faculty usage.  This year I have asked two adjuncts to demonstrate.    Each is quite proficient and effective in using these wonderful tools. 

On the whole, however, our adjuncts are lagging way behind our full-time faculty in using class websites.  It may be that many have done some sort of informal  cost/benefit analysis and decided that it is not worth it.  But I suspect they haven't really considered it.    Maybe lack of time.  Maybe insufficient communication and support.  Maybe inertia.

This leads me to asking how readers--how many of you use a class webpage such as TWEN, Blackboard, WebCT or whatever platform is available at your school?  Have you been encouraged to do so by your school?  Experiences (favorable and unfavorable)?


February 26, 2008 in Law Professors | Permalink | Comments (3) | TrackBack (0)

Monday, February 25, 2008

Transgender NYC Subway Commuter States Cause Of Action Against Transit Authority Under NYC Human Rights Law For Verbal Abuse By A Subway Employee

Bumpus v. NYC Transit Authority, Index No. 3512/07 (Kings Co. Feb. 13, 2008) (registration required), is a very interesting discrimination case brought against the NYC Transit Authority for verbal abuse of a transgendered subway rider by an employee. As the court stated:

In the instant case, the complaint alleges that plaintiff was harassed and humiliated by an employee of the NYCTA merely because she is a transgender woman and was present in the subway station asking for assistance and waiting for a train. The Human Rights Law affords protection to transgender people in New York City. By riding the subway, a transgender person doesn't become less of a person and lose the protection of the Human Rights Law. Clearly the discriminatory behavior of the transit worker is not within the function of the NYCTA. Moreover, defendant NYCTA concedes that the language used by the transit employee "if used would have violated Transit Authority Rules, and would merit discipline". Defendant further acknowledges in its memoranda of law to the Court, that Defendant Doe-Smith's " . . . alleged transgender-phobic comments . . . would certainly be without the scope of her duties . . . ."

Mitchell H. Rubinstein

February 25, 2008 in Discrimination Law | Permalink | Comments (0) | TrackBack (0)

Lawyer Gets 5 Years for Aiding Client's Escape Attempt

Sometimes you just cannot make this stuff up.  Lawyer Gets 5 Years for Aiding Client's Escape Attempt is a Feb. 11, 2008 Fulton County Daily Report article about a lawyer who attempted to aide his client's escape. As the article states:

An attorney charged with smuggling a 14-inch saw blade to a jailed client was sentenced to five years in prison Thursday, although nearly one year will be subtracted because the lawyer has been jailed since his arrest last February.

Albany, Ga., attorney William P. Keenan was representing Dareon Varner against charges of armed robbery, aggravated assault and possession of a firearm during the commission of a felony when, last Feb. 22, the lawyer slipped Varner the blade. According to Keenan's indictment, he first gave Varner a photo of the blade, then later supplied the actual weapon to the inmate, who was later caught with the blade and a diagram of the outside area of the jail.

Mitchell H. Rubinstein

February 25, 2008 in Oddly Enough, Legal | Permalink | Comments (0) | TrackBack (0)

Pro Se Plaintiff Barred From Filing Further Appeals Without Leave of Court

6thcir_2  It is often highly time consuming and expensive to defend against pro se claims. It takes a great deal of time simply to marshall the facts. Additionally, pro se's often file multiple motions without any support which the defendant has to reply to. Courts also bend over backwards not to dismiss their claims.

One thing courts sometimes due is to require leave of court before it will accept another filing from the pro se plaintiff. That is exactly what the 6th Circuit did sua sponte in Amadasu v. Mercy Franciscan Hospital ___F.3d___ (6th Cir. Feb. 8, 2008). Interestingly, the court did not dismiss the case on the merits and made this ruling in the context of several pending motions.

Mitchell H. Rubinstein

February 25, 2008 in Misc., Legal | Permalink | Comments (0) | TrackBack (0)

Are On-line Law Review Supplements Valuable??

Professor Scott Dobson wrote an interesting Feb. 25, 2008 posting on PrawfsBlawg entitled  Online Journal Supplements -- Fizz or Fizzle? where he questions the value of online law review supplements, such as Yale Law Reviews Pocket Part. Turning to his own experiences, he concludes:

  In both cases, I thought the medium provided a wonderful opportunity to reach academics, practitioners, and judges, and thereby to enhance the relevance of the academy to those actually in the trenches.  But that could party be because of the particular topics I picked.

The beauty of these online journals is not that they are online. Rather, there benefits are two fold. First, and most important, they are generally published much sooner than the standard law review. Second, they are generally shorter. Nowadays with most of legal research down online, it seems to me that Yale Pocket Part is just as likely to been seen as Yale Law Review by researchers-though the law review has a much better name.

Clearly, these online journals are incorporating some of the magic that we bloggers try to offer. They provide their readers with timely commentary and are welcome. It would be interesting, however, to see how faculty tenure and appointment committees view these types of articles.

Mitchell H. Rubinstein   

February 25, 2008 in Law Professors | Permalink | Comments (0) | TrackBack (0)